Excerpt: - - 47. this would go to show clearly that though husband of the defendant, passed the writing ex. happy homes ltd. we are unable to agree with counsel for the respondent that in order to determine a tenancy under the transfer of property act at the instance of a tenant, there must be actual delivery of possession before the tenancy is effectively determined (underlining by me). 6. i had examined ex......the landlords of the premises in question which was hired by the abovesaid bai manorama's husband jayantilal amratlal shah, who is the respondent no. 1 before this court in his capacity as one of the heirs and legal representatives of bai manorama, the respondents nos. 2 and 3 being her minor children. in the year 1969, the husband and the wife were living together in the suit premises, but the husband and the wife had fallen out to such an extent that 01 29-6-69 the husband left the premises along with his bags, and baggages. he was so much annoyed with his wife that he went to the landlords and surrendered his tenancy. he also gave a writing ex. 47 to the effect that he had relinquished his possession of the premises in favour of the landlord and had even handed over the.....

Judgment:

N.H. Bhatt, J.

1. This is an appeal by the original plaintiffs of the civil suit no. 1624 of 1969 of the City Civil Court, Ahmedabad, where they had come to lose their suit filed for possession of the property from one Bai Manorama, the sole defendant, who is now represented by her heirs and legal representatives, she having died during the pendency of this appeal.

2. The case presents a peculiar situation calling for consideration of the legal overtones of an act of surrender by the husband, who was admittedly the contracting party in the matter of an agreement of lease. The appellants-original plaintiffs are admittedly the landlords of the premises in question which was hired by the abovesaid Bai Manorama's husband Jayantilal Amratlal Shah, who is the respondent No. 1 before this Court in his capacity as one of the heirs and legal representatives of Bai Manorama, the respondents Nos. 2 and 3 being her minor children. In the year 1969, the husband and the wife were living together in the suit premises, but the husband and the wife had fallen out to such an extent that 01 29-6-69 the husband left the premises along with his bags, and baggages. He was so much annoyed with his wife that he went to the landlords and surrendered his tenancy. He also gave a writing Ex. 47 to the effect that he had relinquished his possession of the premises in favour of the landlord and had even handed over the vacant possession thereof. The fact that the husband had left the house with all his kits was acceptable even to deceased Manorama as could be seen from her twice Ex. 14 dated 1-7-69 which she had given to the landlord because the landlord had already entered the premises unauthorisedly and had locked the kitchen, which was a part of the rented premises. By the said notice, she had threatened the landlord with prosecution for criminal trespass and had charged the landlord with having acted in collusion with her husband. Even in the course of her evidence recorded at Ex. 43, she had stated as follows:

I can identify the handwritings of Jayantilal. I am shown writing Exh. 47.1 identify the signature of Jayantilal on the said writing. Jayantilal at present is residing with his mother, but I do not know his address. On 29-6-69 because of quarrel Jayantilal left the premises and thereafter he ever resided in the premises, but he comes to quarrel with me On 1-7-69, I had given notice to Sumatilal through my advocate. Ex. 14 is that notice. It is signed by me. My attention is drawn to my notice Ex. 14 and I say that Jayantilal had gone away from the premises with his luggage (emphasis supplied by me)'.

3. It, therefore, cannot be denied that out of desperation, Jayantilal had physically left the premises and had even intimated the landlord that he was cutting all the contractual ties between him and the landlord.

4. The controversy that raged between the parties before the learned trial Judge was whether the wife, on her own, had any right to the premises which were hired by the husband. The learned trial Judge very categorically held that Jayantilal was the tenant of the plaintiff No. I. He also held that there was a quarried between the husband of the defendant and the defendant and the defendant had to file a complaint against her husband at Gaekwad Haveli Police Station. The learned Judge, however, in paragraph 16 of his judgment concluded as follows:

These facts go to show that it was not possible for the hushand of the defendant to vacate the premises in such a way that he and the defendant both vacated the premises and went together. This was hardly possible when there was quarrel between the husband of the defendant and defendant, husband of the defendant vacated the premises and in order to harass the defendant, he passed the writing Ex. 47. This would go to show clearly that though husband of the defendant, passed the writing Ex. 47 in which he stated that he had vacated the premises and so handed over the possession, the factual aspect was that he had vacated the premises but there was no question of handing over possession as defendant could not have vacated the premises on that day. The defendant, therefore, continued to reside in the house though she was not the tenant of the plaintiff. Her possession war, not that of a tenant and she had not kept the premises in her own right. Her husband was a tenant and because there was a quarrel the husband vacated and went away and it became impossible for him to hand over vacant possession of the house though he could pass the writing Ex. 47.

(emphasis supplied by me)

5. The above-quoted excerpt from judgment of the learned Judge makes the factual position crystal clear. The learned trial Judge very rightly held that Manorama had no legal right to the premises, there being no privity of contract or statutory privity between her on one hand and the landlord on the other. The learned Judge, despite this finding, dismissed the plaintiff's suit: because, it appears, in his view de facto delivery of possession is the sine qua non of surrender of tenancy rights. The legal position, however, on this score is settled by the Supreme Court in the case of Calcutta Credit Corporation Ltd. and Anr. v. Happy Homes Ltd. : [1968]2SCR20 . In paragraph 9 of that judgment, Justice Shah, speaking for the Bench, observed as follows:

We are unable to agree with counsel for the respondent that in order to determine a tenancy under the Transfer of Property Act at the instance of a tenant, there must be actual delivery of possession before the tenancy is effectively determined (underlining by me).

6. I had examined Ex. 47 itself in order to see its actual import. The writing, as it stands, refers to the relinquishment or release of the tenancy rights already effected. Though there is no specific mention of the release of the tenancy rights, it is implicit in the record of subsequently alleged delivery of possession. The writing in its relevant part reads as under, when translated:

I have handed over to-day the possession of the premises with my own sweet will. I have handed over the premises after vacating the same....

The words quoted above are indicative of something that has already taken place. In other words, they speak of recording something that had already taken place. Implicit in these words is the real surrender of the tenancy rights preceding the writing. In other words, Ex. 47 is a clear and cogent evidence of the effectual surrender of the tenancy rights by the husband Jayantilal. In my view, there is no getting away from this conclusion which is implicitly written large on the document Ex. 47.

7. Even though I endorse all the factual findings of the learned trial Judge, I feel almost constrained to grant the decree in favour of the plaintiffs.

8. Mr. Shah, the learned advocate appearing for the present respondent, however, urged that in the circumstances of the case, no inference could be drawn that the tenancy rights were surrendered and the writing Ex. 47 should be interpreted to mean only a pure attempt on the part of Jayantilal to harass his wife by making the show of delivery of possession without any contractual tie having been severed. Jayantilal now is interested in clinging to the premises, but it is to be recalled here that he is before this Court as a person who has stepped into the shoes of Manorama and in his capacity as an heir and legal representative of Bai Manorama, he cannot advance any more pleas than the ones that could be legitimately advance by Manorama herself, had she been alive. In the above view of the matter, it has to be held that Jayantilal had voluntarily surrendered an tenancy rights and if it be so, the defendant, though the lawfully wedded wife of Jayantilal, had no legal right to be on the premises. In the eye of law, she- was a trespasser and was liable to be evicted in a suit for eviction.

9. The result is that the appeal is allowed. The judgment and decree of the trial Court are set aside and the plaintiffs' suit is decreed as prayed for. There will be no order as to costs as Mr. B.R. Shah appearing for the appellants fairly foregoes the same.